Citation Nr: 21032407 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-13 950 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. FINDING OF FACT The Veteran's hearing loss and tinnitus did not have its onset in service, is not otherwise related to an in-service injury or disease and did not manifest to a compensable degree within a year after separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2019, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Service Connection 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for bilateral tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that his hearing loss and tinnitus began as a result of hazardous noise exposure while in service. In a March 2014 statement, the Veteran asserted that he was stationed with the artillery group while in Vietnam and constantly exposed to artillery fire. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A July 2014 VA examination found diagnoses of bilateral sensorineural hearing loss and bilateral tinnitus. A November 2019 VA examination also confirmed these diagnoses. Accordingly, the first element of service connection has been met. Second, the Board finds that there was an in-service event. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Board notes that the Veteran's March 1966 pre-induction examination, and the March 1970 separation examination both noted that the Veteran did not have ear trouble or hearing loss. As noted above, in a March 2014 statement, the Veteran asserted that while in Vietnam, they were a radio operator stationed with the artillery group, and that they were constantly exposed to artillery fire. The Veteran also stated that they were on the front lines of combat action where they were exposed to 7-inch guns, 155's, quad 50's, and duster fire, but that they were never issued hearing protection. The Veteran asserted that they had no other exposure following service. February 2014 VA treatment records note that while in service, the Veteran was exposed to explosions, various weapons noises, and some helicopter noise. On their VA Form 9, the Veteran reasserted that they spent 12 months with the artillery group while in Vietnam, and that they were not issued any hearing protection even though they fired artillery rounds all day and night the entire time there. The Veteran's DD-214 confirms that they were in Vietnam from February 1968 to February 1969, and that their military occupational specialty was radio operator. Military personnel records note that the Veteran participated in the Vietnam Counter Offensive Phase III, the TET Counter Offensive 6th and 7th Campaigns, and the Vietnam Counter Offensive Phases IV and V. In this regard, the Board finds the Veteran's contentions regarding in-service hazardous noise exposure to be competent and credible as the Veteran is competent to report to factual matters of which they have first-hand knowledge, and they are corroborated by the military personnel records. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record does not support a finding that the hearing loss and tinnitus are related to active service. The Veteran underwent a VA examination in July 2014. Regarding hearing loss, the examiner opined that it was less likely than not that it was connected to service. The examiner explained that the Veteran's hearing was within normal limits at entrance and separation, and that the Veteran reported that the hearing loss was progressive over many years. Regarding the tinnitus, the examiner opined that it was less likely than not as it had only begun approximately 8 months prior, long after military service. The Veteran submitted March 2014 private treatment records where the private physician noted that there is a history of loud noise exposure to include military as a possible cause. The Board finds that this is not significantly probative as it does not provide a clear nexus opinion. See Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (noting that a physician's opinion that a veteran's time as a prisoner of war "could" have precipitated the condition is too speculative to provide medical nexus evidence). In compliance with the Board's June 2019 remand, the Veteran underwent a new VA examination in November 2019. The examiner provided a negative nexus opinion, stating that the hearing was shown to be normal at enlistment and separation, that there was no evidence of hearing loss within 2 years of discharge, and that the Veteran did not report hearing loss and tinnitus until over 30 years later. The examiner stated that although the Veteran had exposure to hazardous noises in service, there is no evidence that the hearing loss or tinnitus was caused by the military. The examiner also explained that the Veteran had reported that the tinnitus had begun in 2014 after an episode of vertigo. Regarding possible delayed onset hearing loss and tinnitus, the examiner referenced a 2005 study by the Institute of Medicine (IOM) about military noise exposure. The examiner noted that the study found that there was no scientific basis for delayed or late onset noise-induced hearing loss 20 to 30 years following separation in cases where there were entrance and separation audiograms with normal hearing. The examiner stated that "[e]vidence from such studies is sufficient to conclude that the most pronounced effects of Noise-induced hearing loss occur immediately following exposure, and recovery to stable thresholds occurs within [approximately] 30 days." The examiner added, "[t]he available anatomical and physiological evidence suggests that delayed post-exposure Noise-induced hearing loss is not likely. There is not sufficient evidence to suggest that permanent Noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure." Here, the Board has first considered whether service connection for hearing loss is warranted on a presumptive basis, to include on the basis of continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested such a condition to a compensable degree during service or within the year following his discharge from active duty service. Service treatment records are negative for complaints, treatments or diagnoses related to hearing loss, to include separation audiogram dated in March 1970. The record shows that the Veteran did not report hearing loss and tinnitus until over 30 years after separation. Therefore, the Board finds that presumptive service connection for hearing loss as an organic disease of the nervous system, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, the Board affords the July 2014 and November 2019 VA medical opinions significant probative value as they both consider the Veteran's contentions and medical history. Specifically, the November 2019 VA examiner's opinion establish that the Veteran's bilateral hearing loss and tinnitus are not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure. The VA examiner determined it is less likely than not that the Veteran's current hearing loss is related to his military service. Additionally, the November 2019 examiner included discussion of the possibility of delayed-onset hearing loss and tinnitus. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered the Veteran's statements in support of his claims. While the Veteran is competent to report in-service acoustic trauma and describe his symptoms, the Board finds the Veteran not competent to offer an opinion as to whether hearing loss and tinnitus are related to any instance of his service since he did not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology of his hearing loss, and, consequently, his opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Additionally, the Board notes that while in the March 2014 statement that the Veteran asserted that they had no post-service noise exposure, February 2014 VA treatment records noted that the Veteran worked as an oil field worker for 19 years, as well as a ranch worker, with noise exposure to equipment. Accordingly, the Board affords the Veteran's assertions less probative weight than the VA medical opinions. (Continued on the next page) Based on a thorough review of the electronic claims file, the Board finds that the preponderance of evidence is against the Veteran's claim for entitlement to service connection for bilateral hearing loss and service connection for bilateral tinnitus. Accordingly, the appeal must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.